"The broken ISDS system has time and time again worked in favor of big business interests while infringing on the rights and sovereignty of our trading partners and their people."
U.S. Sen. Elizabeth Warren and Rep. Lloyd Doggett on Wednesday led nearly three dozen progressive members of Congress in demanding an end to the Investor-State Dispute Settlement system, a key feature of corporate-managed trade agreements signed, and often initiated, by the United States.
"Large corporations have weaponized, and continue to weaponize, this faulty and undemocratic dispute settlement regime to benefit their own interests at the expense of workers, consumers, and small businesses globally," says Warren (D-Mass.) and Doggett's (D-Texas) letter to U.S. Trade Representative Katherine Tai and Secretary of State Antony Blinken.
After praising President Joe Biden's 2020 campaign pledge to exclude ISDS from future trade deals—such as the Americas Partnership for Economic Prosperity and the Indo-Pacific Economic Framework the White House has been negotiating—along with Tai's indication that she "will pursue a trade agenda in line with that commitment," the letter asks Tai's office and Blinken's department to "investigate any and all options at your disposal to eliminate ISDS liability from existing trade and investment agreements."
ISDS mechanisms enable multinational corporations to sue the governments of foreign trading partners for profits they claim have been forfeited as a result of domestic policies designed to protect workers, consumers, and ecosystems. Such lawsuits challenge meaningful labor, product safety, and environmental standards, and the mere threat of them can even preempt the enactment of robust regulations, placing ISDS at the heart of what critics have called neoliberal globalization's "race to the bottom."
The ISDS measures that corporations "successfully lobbied" to include in past trade deals grant them "special rights and privileges that ordinary citizens do not receive," the letter points out. "Under ISDS, disputes are handled not through the judicial system but by industry-friendly arbitration tribunals that can require taxpayers to shell out massive sums to big corporations, with no opportunity to appeal."
"Unlike the courts, 'tribunals have no set procedures or precedents. Standards of evidence are nonexistent, and mistruths or exaggerations go unpunished,'" the letter continues, citing journalist Sarah Lazare. "These provisions tilt the playing field even further in favor of large corporations, incentivizing offshoring and undermining the sovereignty of the United States and other governments."
A pending ISDS case launched recently by a Delaware-based company upset because Honduras' democratically elected government overturned a law that allowed corporations to establish self-regulated private cities inside the impoverished Central American nation exemplifies why the Biden administration needs "to take action to remove this problematic corporate handout from existing agreements," the letter says.
"Late last year," the members of Congress explained, "U.S. company Honduras Próspera launched an ISDS claim under the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR) against the newly elected government of Honduras, seeking nearly $11 billion, equal to roughly two-thirds of the country's entire national budget this year."
The jaw-dropping sum sought by Próspera is not the only reason that this case raises serious concerns. Honduran President Xiomara Castro secured a major victory for democracy last year when the National Congress of Honduras repealed the country's Zonas de Empleo y Desarrollo Económico law (ZEDE, or "Economic Development and Employment Zones"). The legal name misleadingly implies that ZEDEs constitute standard special economic zones, areas within a country's borders that, while politically and fiscally part of the host nation, are governed by separate economic regulations as "a mechanism for attracting foreign direct investment, accelerating industrialization, and creating jobs." However, the legislation enabled the creation of far more radical private governance zones, which have "functional and administrative autonomy" from the national government.
The zones allowed investors to create their own governance systems and regulations and establish separate courts. And investors have used the law to create jurisdictions where companies can propose their own regulations and where most Hondurans cannot enter without authorization. In the case of Próspera, a ZEDE located largely on the Honduran island of Roatán, investors have created a governing council where 44% of members are appointed by the private company and 22% are elected by landowners in a system where their number of votes is proportional to the size of their property.
This anti-democratic policy, approved under the leadership of previous officials, including former president Juan Orlando Hernández, who have since been indicted on drug trafficking and firearms charges, was highly controversial. Honduran labor unions, small farmers, Indigenous organizations, and even the nation's largest business groups expressed vehement opposition. According to the U.S. State Department, the zones "were broadly unpopular, and viewed as a vector for corruption." The Honduran Congress unanimously approved President Castro's proposal abolishing this policy.
Próspera has repeatedly threatened to initiate ISDS arbitration under CAFTA-DR to bully the Honduran government into allowing them to continue operating under the abolished ZEDE framework. In December 2022, the company announced that it filed a CAFTA-DR claim with the International Center for Settlement of Investment Disputes (ICSID), which will force the government of Honduras to potentially spend millions of dollars defending itself for responding to the will of its people and asserting its sovereignty over these special governance jurisdictions operating in its territory.
The lawmakers asked Tai and Blinken to "intervene—through a statement of support, amicus brief, and any other means at your disposal—in support of Honduras' defense in the Próspera ISDS case and to ensure that such egregious cases can no longer disrupt democratic policymaking by working to eliminate ISDS liability in preexisting agreements in our hemisphere."
Notably, the suit against Honduras "is just the most recent example of the worrying trend of increased ISDS use in the Americas, both in the number of cases and the sky-high value of the claims," the letter observes. "Governments throughout Latin America have paid billions of dollars in compensation to foreign companies at their taxpayers' expense, simply for putting in place sound public policy to protect the environment and the health and economic well-being of their communities. Governments—and therefore taxpayers—throughout the region have been ordered by ISDS tribunals to pay close to $28 billion to corporations, with far more in pending ISDS claims."
Decrying how "the broken ISDS system has time and time again worked in favor of big business interests while infringing on the rights and sovereignty of our trading partners and their people," the lawmakers urged the Biden administration to "refrain from negotiating new trade agreements with ISDS, and also to address the existing ISDS mechanisms that corporations continue to exploit."
Melinda St. Louis, director of Public Citizen's Global Trade Watch, said in a statement that her group has been keeping a close eye on the "truly shocking" case against Honduras, "as well as the explosion of ISDS cases in the region."
Public Citizen "is coordinating with civil society groups across the hemisphere working to remove these increasingly unpopular ISDS provisions from trade agreements and investment treaties," said St. Louis. "President Biden's commitment to exclude ISDS in new agreements must be matched by immediate action to dismantle ISDS in existing agreements—or else shameful cases like the $11 billion one against Honduras will continue."
Warren and Doggett's letter was signed by Independent Sen. Bernie Sanders (Vermont) and 30 Democratic lawmakers, including Sens. Sherrod Brown (Ohio) and Sheldon Whitehouse (R.I.), as well as Reps. Jamaal Bowman (N.Y.), Cori Bush (Mo.), Greg Casar (Texas), Jesús G. "Chuy" García (Ill.), Pramila Jayapal (Wash.), Ro Khanna (Calif.), Barbara Lee (Calif.), Summer Lee (Pa.), Donald Norcross (N.J.), Ilhan Omar (Minn.), Mark Pocan (Wis.), and Rashida Tlaib (Mich.).